Congress only has a very short window to consider the latest attempt by Republicans to repeal and replace the Affordable Care Act (ACA) under the filibuster-free budget reconciliation process. That almost certainly isn’t enough time for the Congressional Budget Office (CBO) to weigh in with an estimate of the consequences of the Republican bill. But in the absence of the CBO, broadcaster Jimmy Kimmel has delivered three lengthy monologues that are intended to inform his viewers about what the Republican legislation will do. Here’s how this all came about.
There’s a blind spot around the Republican proposal
Powerful donors have put intense pressure on Republicans to get the job done. But with most voters still opposed to repealing and replacing the ACA, the bill’s co-authors, Sens. Bill Cassidy (R-La.) and Lindsay Graham (R-S.C.), face a dilemma: how to pass legislation that a majority of Americans oppose?
Either by design or as a side-effect, Cassidy and Graham’s bill creates a blind spot for voters and the public. By converting the ACA’s major spending provisions into a block grant to the states and by creating waivers that allow states to opt out of the ACA’s consumer protections, Cassidy and Graham claim that they are giving states flexibility to design health revisions that meet local needs. Yet it is also plausible that — if the bill passes — public attention will move away from Congress to 50 state capitals, where a confusing and fragmented story will unfold. Voters may well blame problems with repeal and replace on governors and legislatures, not congressional Republicans.
There is evidence that this has happened in the past. During Hurricane Katrina, for example, the fragmentation of responsibility for emergency response allowed national political actors to shift blame for policy failures to the states. Devolving power from the federal government to the states has also long been a Republican campaign promise. Yet the block grants and waivers in Cassidy-Graham have an even more immediate political benefit: They make it easier for the Republican bill to survive the scrutiny of the Congressional Budget Office (CBO) without taking damage.
Block grants and waivers make it harder to analyze legislation
Block grants and waivers make it cumbersome for CBO to project the potential effects of repeal legislation in a timely way. Consider the case of Rep. Tom MacArthur’s (R-N.J.) amendment to the House’s initial “repeal and replace” bill, which allowed states to opt out of several key ACA regulations. This amendment was introduced on the evening of April 25, and had legislative language that was challenging for the CBO to score before the House’s May 4 vote.
The complexity of gathering data and modeling likely policy choices in 50 states meant that the CBO took until May 24 to provide an estimate of the amended House bill. They projected that 51 million people under 65 would be uninsured, compared to 28 million under the ACA. Yet the House voted in the absence of a score, prompting former CBO director Douglas Elmendorf to criticize the move as violating congressional norms. “This is not a post-office naming bill,” Elmendorf said. “[T]his is an overhaul of the U.S. health-care system, and to proceed to a vote without any serious estimates of what it will do to the country is unbelievable to me.”
The waiver provisions also gave supporters of the MacArthur amendment the opportunity to dismiss the CBO’s estimates as uncertain and subjective. To predict how many states would pursue a waiver, the CBO had to make assumptions about how elected officials are likely to behave. While this does not make modeling impossible — indeed, the CBO can project what will happen to insurance coverage under a variety of scenarios — it is a political question that is not ideally suited to standard economic models. MacArthur himself blasted the CBO’s score, suggesting that he didn’t think waivers would destabilize the individual marketplace and that, “just because a group of auditors down the block has created a model with ifs ands or maybes that doesn’t make it a gospel.”
However, complexity can cut both ways
Congress’s budget reconciliation rules require the CBO to analyze how Cassidy-Graham will affect the federal deficit. However, they do not require it to analyze the bill’s effects on health-insurance coverage. Increasing the complexity of CBO’s modeling decisions by including block grants and waivers means that the office will have a very hard time providing a full analysis before the Senate’s vote. Decentralizing authority also makes it easier for supporters of Cassidy-Graham to claim the CBO’s estimates are off base, since it is problematic to turn the political future in 50 states into a single estimate of predicted coverage.
Ironically, by undermining the CBO and lambasting policy experts, the Republicans may also generate a new sort of backlash. Under conditions of uncertainty, and when vital health benefits are on the line, voters might have good reasons to assume the worst. In a post-technocratic era, Americans may be more likely to heed the warnings of people like the national TV host Jimmy Kimmel. Throughout the repeal debate, Kimmel has been a one-man CBO, suggesting that any bill must ensure that “no family should be denied medical care, emergency or otherwise, because they can’t afford it.” By allowing states to opt out of these guarantees, Cassidy-Graham failed the test, Kimmel said in his opening monologue Tuesday night, and later tweeted to his followers that they should call their senators to register their disappointment with Cassidy for lying about the contents of the bill.
To pass a revision that is massively unpopular, Republicans have pushed legislative procedure to the limit. Their tactics have also, whether deliberately or as a by-product, fueled public debate with distrust in experts and numbers. If this works, it will move decisions from the federal to the state level, so that voters may stop blaming national legislators for their health care outcomes. However, Republicans are betting that the complexity of the process will allow them to avoid blame for weakening consumer protections in the ACA. That’s a risky gamble indeed.
Philip Rocco is an assistant professor of political science at Marquette University and a co-author of “Obamacare Wars: Federalism, State Politics, and the Affordable Care Act.” His current book project examines how advisory commissions reshaped the politics of U.S. federalism.
This article is one in a series supported by the MacArthur Foundation Research Network on Opening Governance that seeks to work collaboratively to increase our understanding of how to design more effective and legitimate democratic institutions using new technologies and new methods. Neither the MacArthur Foundation nor the Network is responsible for the article’s specific content. Other posts in the series can be found here.